Posts Tagged ‘Pennsylvania lawyer’

On March 1, 2016, the Equal Employment Opportunity Commission (EEOC) took the long predicted, but unprecedented, step of filing complaints in federal courts against two private companies alleging that sexual orientation discrimination is a violation of the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964. For the last several years, the EEOC has been accepting and investigating such allegations involving private employers and last year ruled in a case involving a federal government employee that sexual orientation discrimination was “inherently” a form of sex discrimination under Title VII.  To date, no federal appeals court has reached this conclusion and five Courts of Appeal have flatly rejected extending Title VII in this fashion.

To put this issue in a broader context, on July 21, 2014, President Obama issued Executive Order 13672 which amended Executive Order 11246 (issued in 1965) to include prohibitions against discrimination based on sexual orientation or gender identity, but the Executive Order only governs certain federal contractors. From 1994 through 2014, a version of the Employment Non-Discrimination Act (ENDA) was introduced in every session of Congress except for the 109th Congress (2004-2005.)  Early forms of the legislation would have only prohibited discrimination by private employers of 15 or more employees based on sexual orientation, but beginning in 2007, the proposed legislation would have also prohibited discrimination based upon gender identity.  Each of these versions of the bill included a religious exemption provision.  It was thought that with the election of President Obama in 2008, together with Democrat control of the House and Senate that ENDA would become law in 2009 or 2010, but it seemingly got lost in a crowded legislative calendar.  ENDA was not introduced in the current session of Congress.  Rather, with broad backing from the LGBT community, a more comprehensive Equality Act was proposed which would prohibit discrimination based on sexual orientation and gender identity in employment, public accommodations, housing and a variety of other areas.  Given the current makeup of Congress, its prospects of passage are not favorable.

Critics of the EEOC’s recent action argue that it is another example of the Obama administration’s willingness to use the administrative process to revise existing law. Advocates for the LGBT community argue, however, that the new lawsuits are a natural extension of the EEOC’s efforts to provide broad protection under Title VII.  Persons on both sides of the issue will be carefully following the actions at the district court level.

The case against Scott Medical Center was filed in the Western District of Pennsylvania and alleges that a gay male telemarketing representative was subjected to a sexually hostile work environment based upon numerous offensive comments directed at him by his male supervisor pertaining to his sex life and other personal matters. The employee’s resignation in the face of this conduct is alleged to be a constructive discharge.  The case appears to have been assigned to Judge Cathy Bisson, who was nominated to the Court in 2010 by President Obama.  The other case, which was filed in Maryland, alleges that Pallet Companies d/b/a IFCO Systems violated Title VII by its treatment of a lesbian forklift operator which included comments directed to her by her male supervisor such as, “I want to turn you back into a woman” and “you would look good in a dress.”  She was terminated a few days after registering complaints about this behavior to management and on an employee hotline.  The EEOC alleges that this termination was unlawful.  This case appears to have been assigned to Judge Richard D. Bennett, who was nominated to the Court by President George W. Bush in 2003.  In both cases, in addition to the usual remedies, the EEOC is seeking that punitive damages be awarded to the complainants.  It will be very interesting to watch how the courts handle these cases.

From a practice perspective, however, it is highly recommended that employers get ahead of this issue and modify, if necessary, their existing Discrimination and Harassment policies to include broad prohibitions against discrimination that include sexual orientation and gender identity as protected categories. The attorneys at Harmon & Davies, P.C. are available to discuss these matters with you in further detail.

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Posted in Labor & Employment | Comments Off on EEOC Sues 2 Private Employers in Unprecedented Sexual Orientation Discrimination Lawsuits

Surveying – A (Not-So) Subtle Change in the Davis-Bacon Act

On March 22, 2013, Mary Beth Maxwell, the Acting Deputy Administrator for the Wage and Hour Division of the U.S. Department of Labor, issued Memorandum No. 212 that significantly altered the application of the Davis-Bacon Act to survey crews on federally funded construction projects.  While Acting Deputy Administrator Maxwell characterized the Memorandum as guidance that “supplemented” guidance in Memoranda issued in 1960 and 1962, the fact of the matter is that whereas survey crews were generally excluded from Davis-Bacon Act coverage prior to the issuance of her Memorandum, they are now generally going to be included.

This action was accomplished through a revision to Section 15e20 of the Field Operations Handbook, which is the enforcement “bible” for DOL investigators.  The previous language of Section 15e20(b) included the following:

 “As a general matter, members of the survey party who hold the leveling staff while measurements of distance and elevation are made, who help measure distance with a surveyor chain or other device, who adjust and read instruments for measurement or who direct the work are not considered laborers or mechanics.  However, a crew member who primarily does manual work, for example, clearing brush, is a laborer and is covered for the time so spent.”

 The new language appears designed to reverse this presumption.  It appears that the Operating Engineers Union successfully lobbied the Department of Labor for this change.  Since the Department of Labor has not normally included these classifications in its surveys for purposes of wage determinations, the Memorandum advises that the conformance process will be used until future surveys include these classifications.

By letter dated July 11, 2013, the Chairman of three Congressional committees or subcommittees questioned Acting Deputy Administrator Maxwell on this significant change in long-standing policy and asked for information, including documents relating to the Operating Engineers Union’s request for this change.

Both engineering firms who may do survey work on federal projects and general contractors who may hire survey crews need to be aware of this change so that they are not found in violation of the Davis-Bacon Act.  Please feel free to contact Harmon & Davies if you need additional information.

This article is authored by attorney Tom Davies and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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Posted in Construction, Davis-Bacon Act, Prevailing Wage | No Comments »